Marlett v. Docter

89 Wis. 347 | Wis. | 1895

NewMAN, J.

The county court of Milwaukee county, before the creation of the superior court, had exclusive appellate jurisdiction in all cases of appeal from justices’ courts in civil actions, and all general provisions of law relating to the circuit courts and to civil actions and proceedings therein are made applicable to that court. R. S. secs. 2465, 2466. By the act Avhich created the superior court, “ the jurisdiction and po wers of the county court of Milwaukee county in civil actions and proceedings” were transferred to and vested in the superior court of Milwaukee county. S. & B. Ann. Stat. sec. 2498c. This action was triable in the superior court in all respects the same as if it had been originally brought there. R. S. sec. 3768. The court had the power, at any stage of the action, to amend the proceeding by directing another party to be brought in. R. S. sec. 2830.

But the amendment could only be made upon such terms as may be just. This question of terms is often deemed an important matter. Wilson v. Eau Claire, ante, p. 47; Felton v. Hopkins, ante, p. 143. What terms are to be regarded, as just depends upon the facts of tbe particular case. It is-a matter within the discretion of the trial court. This court interferes with the exercise of that discretion only when it has been abused. Jones v. Walker, 22 Wis. 220; Morgan v. Bishop, 61 Wis. 407.

In this case the plaintiff found himself in error. He had omitted from his action a necessary party defendant. He was likely to be defeated unless the court should grant him indulgence. He should be allowed to correct his error, but on such terms as were just. It was just, of course, that the consequences of his error should fall upon himself. The defendants were in no fault about it. They had notified him by their answer of his error before costs had accumulated and while the error could readily have been corrected. If costs had accumulated it was by the fault of the plaintiff. Yet the court allowed the plaintiff to correct his error, and visited the consequences of it upon the defendants. It not only allowed the plaintiff to correct his error without imposing terms, but required the defendants to pay him a bonus. His error is made profitable to him. This is an abuse of discretion. The plaintiff should have been required to pay terms to the defendants.

By the Court.— The order of the superior court of Milwaukee county is reversed, and the cause remanded for further proceedings according to law.